ATC121129: Report of the Select Committee on Security and Constitutional Development on the Suspension from Office of Magistrate L Myles, dated 28 November 2012.

Report of the Select Committee on Security and Constitutional Development on the Suspension from Office of Magistrate L Myles , dated 28 November 2012.

Introduction

The Select Committee on Security and Constitutional Development, having considered the report dated 30 July 2012 informing Parliament of the suspension from office of Magistrate L Myles, an additional magistrate in Upington, tabled in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993) , and pending consideration by Parliament of a recommendation by the Magistrates Commission for her removal from office as a Magistrate in terms of section 13(4) (a) (ii) of the Magistrates Act, 1993 (Act no 90 of 1993) reports as follows:

Background

1. The Ethics Committee of the Magistrates Commission on 17 March 2010 considered a report dealing with the continued ill health of Magistrate Ms L Myles.

2. The Ethics Commission ordered an investigation in terms of regulation 29 of the Regulations for Judicial Officers in the Lower Courts, 1994, regarding her removal from office on account of continued ill-health.

3. Ms Myles was informed of the investigation and was requested to submit a medical report from a medical practitioner of her choice to the Commission. Ms Myles submitted the medical reports together with reports she herself compiled. These reports were submitted by the Department of Justice and Constitutional Development to Pro-Active Health Solutions (PHS), an independent service provider appointed by Government to evaluate and advise on ill-health retirement and medical reports, for an expert opinion.

4. On 1 December 2011 the Ethics Committee considered the medical reports and the opinion from PHS and noted the following:

a) The medical reports indicate that her mental state has been severely compromised as a result of a major depressive episode since April 2009.

b) The reports indicate that Ms Myles’s working environment has contributed significantly to her depression as well as other social stressors.

c) Ms Myles was adjudged fit enough to continue with her work but PHS recommended that she should be accommodated with a reduced workload and less stressful cases. PHS recommended that her employer be empathetic and supportive towards Ms Myles.

d) The medical reports recommended that she should continue with regular psychotherapy from a clinical psychologist and continue with regular consultations with a psychiatrist.

Consideration of Ms Myles’s condition on her work performance

1. The Ethics Committee considered Ms Myles’s attendance record which showed that she had been absent from office on sick leave with full pay for 460 days and on sick leave with half pay for 141 days since 1 November 2004.

2. After considering the medical reports, together with other relevant information, the Ethics Committee formed the opinion that she does not have the capacity to carry out her duties of office in an efficient manner due to continued ill-health.

3. In accordance with the Regulations Ms Myles was informed of the medical reports and other documents considered by the Ethics Committee. She was informed that she may provide the Chairperson of the Commission, within 10 working days after the date on which the opinion of the Commission has come to her notice, with written comments regarding the opinion. [1]

4. On 9 January 2012 the Commission received written comments dated 26 December 2011 from Ms Myles regarding the opinion.

a) Ms Myles contends that her sick leave is not unreasonable as it was covered by medical certificates for every period.

b) She submits that she never requested to be accommodated with a reduced workload and that her history of work performance shows that she is capable of producing longer court hours and that she can dispose of more matters than her colleagues.

c) In her view she has the capacity to deal with a normal workload.

d) She feels that other magistrates who are charged with crimes received better treatment than she did and submits that the enquiry into her capacity to carry out her duties of office in an efficient manner due to continued ill-health is not substantively and procedurally fair.

5. The Ethics Committee at its meeting on 16 February 2012 considered her comments and held the view that there was a fair review of Ms Myles’ capacity to carry out her duties of office in an efficient manner. She was given the opportunity to submit to the Chairperson of the Commission written comment regarding the opinion. She was still on sick leave at the time and it was not clear when she would return to work. The matter was referred to the Commission’s Executive Committee for consideration.

Executive Committee’s review of the Ethics Committee’s recommendation to suspend Ms Myles

6. The Executive Committee was of the view that the expert opinion presented to the Commission by PHS did not support Ms Myles’ removal from office.

7. The experts were suggesting that the employer should accommodate Ms Myles and allow her to continue with her occupation by reducing her workload and exposing her to less stressful cases whilst she continues with regular therapy consultations with a Psychiatrist.

8. The Executive Committee questioned whether it would be possible to accommodate her in this manner in view of her sick leave history and the extent to which she had already been accommodated by means of sick and vacation leave.

9. The Committee approached the Cluster Head to submit a report to the Commission on:

a) The nature of judicial work which Ms Myles is required to perform when she is at the office,

b) The Cluster Head’s opinion regarding the quality of her judicial work when she has been at the office.

c) The impact which her long periods of sick leave had on service delivery at the office and within the sub-cluster and any other information which he could provide to enable the Commission to take an informed decision.

d) He was also required to indicate whether it would be possible to, for a period, allocate judicial work to Ms Myles which would be less stressful whilst she continues with regular psychotherapy from a Clinical Psychologist and regular consultations with a Psychiatrist.

10. The Cluster Head responded after consultation with the Acting Senior Magistrate in Upington to the matters raised by the Commission:

a) He indicated that the heavy workload at Upington court required dedicated, versatile and hardworking magistrates who were able to assist across all divisions (criminal-, civil-, family- and quasi-judicial court work) on a daily basis. Therefore, there was no less stressful court, or environment, at the Upington court to accommodate Ms Myles.

b) In his view the continued absence of Ms Myles is compromising quality and effective and efficient service delivery. He supported a recommendation to Parliament that Ms Myles be removed from office due to continued ill-health.

c) The Acting Senior Magistrate in Upington indicated that Ms Myles would be allocated to Court C, the channelization court at Upington, upon her return to the office. She would be required to deal mainly with the postponement of cases to other courts and to deal with bail applications which may vary between four to five applications per day. The number of outstanding cases on the court rolls at Upington is high. At the end of February 2012 there were 1,211 outstanding cases on the 5 criminal court rolls. Due to the high court rolls, and her history of absence, the court could not afford to risk cases not being finalized due to her absence.

d) The Acting Senior Magistrate indicated that in the past Ms Myles was assigned to every criminal court in the office, including C court, but was unable to cope with the workload. She was also allocated to the civil court, but could not cope.

e) The acting Senior Magistrate noted that the quality of Ms Myles work indicated that she performed her duties similar to that of other magistrates and that there was no evidence that her work was of poor quality.

f) Her continued absence had severely impacted the morale of her colleagues because her workload would be shared among them, resulting in them not being able to attend to their own courts optimally. This created a situation where the public and other stakeholders were losing trust in the magistrates’ ability to manage the courts.

11. The Magistrates Commission reported that as of 18 July 2012 Ms Myles had still not returned to work and since 31 December 2011 had failed to submit medical certificates to cover her absence from the office despite various requests to submit the certificates.

Recommendation by the Magistrates Commission to suspend Ms Myles

12. At its meeting held on 20 and 21 July 2012, the Commission considered the content of all the documents as required by the Regulations [2] . The Commission is of the opinion that Ms Myles should be removed from office due to continued ill-health. She was still absent and had failed to submit any medical certificates to support her absenteeism. The detrimental impact this had on service delivery and the administration of justice could no longer be justified. The Commission found that she was not fit to hold the office of magistrate any longer.

Recommendation

Having considered the Commission’s report on the suspension from office of Ms L Myles and the Minister’s request, the Committee recommends that the National Council of Provinces confirms her suspension and removal from office as a Magistrate on the grounds of incapacity to perform her duties due to ill health.

Report to be considered.